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EXHIBIT 10.26
FIRST AMENDMENT TO
AMENDED AND RESTATED MASTER REVOLVING CREDIT AGREEMENT
AND OTHER LOAN DOCUMENTS
THIS FIRST AMENDMENT TO AMENDED AND RESTATED MASTER REVOLVING CREDIT
AGREEMENT AND OTHER LOAN DOCUMENTS (this "Amendment") made as of this 22nd day
of May, 1997, by and among RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L. P., a Delaware
limited partnership ("Borrower"), RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST, a
Massachusetts business trust ("Guarantor"), BANKBOSTON, N.A. (formerly known as
The First National Bank of Boston), individually ("BankBoston"), NBD BANK
("NBD"; BankBoston and NBD are hereinafter referred to collectively as the
"Banks"), and BANKBOSTON, N.A. (formerly know as The First National Bank of
Boston), as Agent (the "Agent").
W I T N E S E T H:
WHEREAS, Borrower, Guarantor, Agent and the Banks entered into that
certain Amended and Restated Master Revolving Credit Agreement dated as of June
24, 1996 (the "Credit Agreement"); and
WHEREAS, Borrower and Guarantor have executed and delivered to the Agent
and the Banks that certain Amended and Restated Indemnity Agreement Regarding
Hazardous Materials dated as of June 24, 1996 (the "Amended and Restated
Indemnity Agreement"); and
WHEREAS, in connection with the addition of certain collateral to secure
Borrower's obligations under the Credit Agreement, Borrower and Guarantor have
executed and delivered to the Agent and the Banks that certain Indemnity
Agreement Regarding Hazardous Materials dated as of June 24, 1996 (the
"Supplemental Indemnity Agreement"); and
WHEREAS, Guarantor has executed and delivered to the Agent and the Banks
that certain Amended and Restated Unconditional Guaranty of Payment and
Performance dated as of June 24, 1996 (the "Guaranty"); and
WHEREAS, Borrower has requested that Agent and the Banks modify and
amend certain terms and provisions of the Credit Agreement; and
WHEREAS, as a condition to such modification, Agent and the Banks have
required that Borrower and Guarantor execute this Amendment;
NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100
DOLLARS ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
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1. Definitions. All terms used herein which are not otherwise
defined herein shall have the meanings set forth in the Credit Agreement.
2. Modification of the Credit Agreement. Borrower, Guarantor, the
Banks and Agent do hereby modify and amend the Credit Agreement as follows:
(a) By deleting in their entirety the definitions of the terms
ABorrowing Base,"Loan Documents," "Security Deeds" and "Title Policy,"
appearing in Section 1.1 of the Credit Agreement, and inserting in lieu thereof
the following:
"Borrowing Base. At any time with respect to the Borrower, the
Borrowing Base shall be the aggregate of the Borrowing Bases for
each parcel of Eligible Real Estate included in the Mortgaged
Property owned by the Borrower. The Borrowing Base for each
parcel of Eligible Real Estate included in the Mortgaged Property
shall be the amount which is sixty percent (60%) of the Appraised
Value of such Mortgaged Property as most recently determined as
provided under Section 5.2 or Section 10.7; provided, however,
that the Borrowing Base for each parcel of such Eligible Real
Estate which is Special Real Estate included in the Mortgaged
Property shall be the amount which is fifty percent (50%) of the
Appraised Value of such Special Real Estate Mortgaged Property as
most recently determined as provided under Section 5.2 or Section
10.7; and provided, further, however, that the aggregate portions
of the Borrowing Base attributable to Special Real Estate shall
at no time exceed the lesser of (A) $6,320,000.00 (or
$22,500,000.00, in the event that the Total Commitment is
increased to $75,000,000.00) or (B) thirty percent (30%) of the
entire Borrowing Base.
Loan Documents. This Agreement, the Notes, the Letters of
Credit, the Letter of Credit Applications, the Security Documents
and all other documents, instruments or agreements now or
hereafter executed or delivered by or on behalf of the Borrower
or the Guarantor in connection with the Loans. The Loan
Documents include the Special Security Documents.
Security Deeds. The Mortgages, Deeds to Secure Debt and Deeds of
Trust from the Borrower to the Agent for the benefit of the Banks
(or to trustees named therein acting on behalf of the Agent for
the benefit of the Banks), as the same may be modified or
amended, pursuant to which the Borrower has conveyed a Mortgaged
Property as security for the Obligations of the Borrower. The
Security Deeds include those Special Security Documents which are
described by the sentence immediately preceding this sentence.
Title Policy. With respect to each parcel of Mortgaged Property,
an ALTA standard form title insurance policy (or, if such form is
not available, an equivalent form of or legally promulgated form
of mortgagee title insurance policy reasonably acceptable to the
Majority Banks) issued by a Title Insurance
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Company (with such reinsurance or co-insurance as the Majority Banks may
require, any such reinsurance to be with direct access endorsements to
the extent available under applicable law) in such amount as the
Majority Banks may require insuring the priority of the Security Deeds
and that the Borrower holds marketable fee simple title to such parcel,
subject only to the encumbrances permitted by the Security Deed and
which shall not contain standard exceptions for mechanics liens, persons
in occupancy (other than tenants as tenants only under Leases) or
matters which would be shown by a survey, shall not insure over any
matter except to the extent that any such affirmative insurance is
acceptable to the Majority Banks in their sole discretion, and shall
contain (a) a revolving credit endorsement and (b) such other
endorsements and affirmative insurance as the Majority Banks reasonably
may require and is available in the State in which the Real Estate is
located, including but not limited to (I) a comprehensive endorsement,
(ii) a variable rate of interest endorsement, (iii) a usury endorsement,
(iv) a doing business endorsement, (v) in States where available, an
ALTA form 3.1 zoning endorsement, (vi) a "tie-in" endorsement and (vii)
a "first loss" endorsement; provided, however, that with respect to
Special Real Estate, the "Title Policy" shall be an owner's policy of
title insurance, in a form satisfactory to the Majority Banks,
containing only exceptions satisfactory to the Majority Banks,
supplemented by a current "date down" or "nothing further" certificate
(or if such endorsement or certificate is not available a current
mortgagee's title commitment in favor of the Agent) provided by an
issuer satisfactory to the Majority Banks, evidencing the state of title
to the Special Real Estate, as of a date not earlier than thirty (30)
days prior to delivery thereof to the Agent or such later date as may be
required by any other provision hereof (it being acknowledged that a
Title Policy relating to Special Real Estate shall not be considered in
full force and effect if such a current satisfactory supplement has not
been delivered within a period of one year)."
(b) By deleting in their entirety Sections (b), (c), and (e)
of the definition of the term "Eligible Real Estate Qualifications Documents"
appearing in Section 1.1 of the Credit Agreement, and inserting in lieu thereof
the following:
"Enforceability Opinion. The favorable legal opinion of counsel to the
Borrower and the Guarantor reasonably acceptable to the Majority Banks
qualified to practice in the State in which such Real Estate is located,
addressed to the Banks and in form and substance satisfactory to the
Majority Banks as to the enforceability of such Security Documents
(including the opinion that the Special Security Documents and the
agreement herein for the future recording thereof are enforceable
between the parties thereto, with appropriate qualifications acceptable
to the Majority Banks as to the enforceability against third parties
prior to recordation thereof) and such other matters as the Majority
Banks shall reasonably request.
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Perfection of Liens. Except with respect to Special Real Estate,
evidence reasonably satisfactory to the Majority Banks that the Security
Documents are effective to create in favor of the Agent a legal, valid
and enforceable first (except for Permitted Liens approved by the
Majority Banks entitled to priority under applicable law) lien and
security interest in such Real Estate and that all filings, recordings,
deliveries of instruments and other actions necessary or desirable to
protect and preserve such liens or security interests have been duly
effected.
Title Insurance; Title Exception Documents. The Title Policy covering
such Real Estate, including all endorsements thereto, and together with
proof of payment of all fees and premiums for such policy, and true and
accurate copies of all documents listed as exceptions under such policy
or any supplements thereto accepted by Agent."
(c) By adding in alphabetical order within Section 1.1 of the
Credit Agreement the following additional definitions:
"Guarantor Acknowledgment. A ratification and acknowledgment executed
by the Guarantor that the obligations guaranteed by the Guaranty include
the Special Security Documents, in form and substance satisfactory to
the Majority Banks.
Regular Real Estate. All of those certain parcels of Real Estate which
are not Special Real Estate.
Special Real Estate. Those certain parcels of Real Estate which are
described on Schedule 1.1. In the event that after the date hereof any
other Real Estate shall become Special Real Estate, the Agent may
unilaterally amend Schedule 1.1 to reflect such addition.
Special Security Documents. The Security Documents relating to Special
Real Estate, which have been or may in the future be executed and
delivered to Agent for the benefit of the Banks, and which are not to be
recorded until the occurrence of the events specified in Section 5.7 (it
being acknowledged that the Guaranty is not a Special Security
Document)."
(d) By deleting in its entirety Section 5.1 of the Credit Agreement,
and inserting in lieu thereof the following:
"Section 5.1. Collateral. The Obligations of the Borrower shall be
secured by (I) a perfected first priority lien or security title to be
held by the Agent for the benefit of the Banks in the Mortgaged
Property, Building Service Equipment and other personal property of the
Borrower, pursuant to the terms of the Security Deed, (ii) a perfected
first priority security interest to be held by the Agent for the
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benefit of the Banks in the Leases pursuant to the Assignments of Rents
and Leases from the Borrower and (iii) the Indemnity Agreement; provided
however, that the security interests in Special Real Estate and rents
generated therefrom shall be perfected only as provided in Section 5.7.
The Obligations shall also be guaranteed pursuant to the terms of the
Guaranty."
(e) By adding the following as additional Sections 5.5, 5.6, 5.7 and
5.8 to the Credit Agreement:
"Section 5.5 Addition of Mortgaged Properties.
(a) The Borrower shall have the right, subject to the
consent of the Majority Banks which may be withheld by the
Majority Banks in their sole and absolute discretion, to
add to the Collateral, any other Real Estate which is
owned by the Borrower and which is not security for any
other Indebtedness. Such addition shall be completed by
the completion and delivery to the Agent for the benefit
of the Banks of each of the Eligible Real Estate
Qualification Documents. Such Real Estate shall be
Eligible Real Estate, shall be satisfactory to the
Majority Banks in all respects and shall have a Borrowing
Base amount attributable thereto by the Majority Banks so
as to cause the Borrower to continue to be in compliance
with all covenants contained in this Agreement. In the
event that Borrower desires for such Real Estate to be
Special Real Estate, the Borrower shall deliver such
evidence as the Agent may require indicating that it is
not feasible for such Real Estate to be Regular Real
Estate upon the transfer and amendment and restatement of
any existing loan documents which may encumber such Real
Estate, and such Real Estate may not be Special Real
Estate without the approval of the Agent.
(b) In connection with each such addition to increase
the Borrowing Base or to replace a Mortgaged Property
except for the reasons set forth in Section 5.6, the
Borrower, within fifteen (15) days of the Borrower's
request to add such Real Estate to the Collateral, shall
pay to the Agent for the account of the Banks a review fee
of $10,000.00 for each parcel of Real Estate to be added
to be split equally by the Banks, without regard to their
respective Commitment Percentages.
Section 5.6 Mandatory Increase in Borrowing Base. At all times
when the portion of the Borrowing Base attributable to Regular
Real Estate (without taking into account any Borrowing Base
attributable to Special Real Estate) is less than the Total
Commitment (including any increase in such Total Commitment), all
Real Estate located outside of New York, Florida and Maryland
which is purchased or developed with proceeds of Loans or any
Equity Offering or which has been encumbered by Indebtedness
which is repaid with proceeds of Loans shall be
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immediately mortgaged or conveyed to Agent for the benefit of the Banks,
and Borrower shall promptly cause the same to become Eligible Real
Estate; provided that the Borrower shall take commercially reasonable
steps to cause any lender holding a lien on Real Estate located in New
York or Maryland that is acquired by the Borrower to transfer such
Indebtedness and related loan documents to Agent, and to amend and
restate the same to allow Agent to record a Security Deed against such
Real Estate, and in such event such Real Estate may not be Special Real
Estate.
Section 5.7 Non-Encumbrance. Without implying any limitation upon
the generality of Section 8.2, the Borrower will not, and will not
permit any other Person to, create or incur or suffer to be created or
incurred or to exist any lien, encumbrance, mortgage, pledge, negative
pledge, change, restriction or other security interest of any kind upon
any Special Real Estate encumbered by any Special Security Documents
(whether now owned or hereafter acquired), except for matters set forth
in Title Policies relating to such Special Real Estate submitted to and
approved by Agent.
Section 5.8 Special Security Documents. The Special Security
Documents have been delivered and are effective or shall be effective
upon the future delivery thereof, but shall not be recorded until the
occurrence of an Event of Default. Upon the occurrence of an Event of
Default, the Agent may, and upon the direction of the Majority Banks,
shall, record the Special Security Documents in the public records
without any further action of or notice to Borrower or any other party
and without waiving such Event of Default; provided, however, that if
such Event of Default exists solely as a result of default described in
Section 12.1(b), the Agent shall give the Borrower two (2) Business Days
notice prior to the recordation of the Security Documents. In addition,
the Borrower shall promptly deliver to Agent such further documents as
may be reasonably requested by the Agent relating to such Real Estate,
including without limitation, owner's affidavits, updated legal opinions
and copies of leases and such changes to the Special Security Documents
as may be necessary or desirable to comply with changes in applicable
law. In connection with the recording of the Special Security
Documents, the Agent may obtain, at the Borrower's sole cost and
expense, a mortgagee's title insurance policy with respect to each
parcel of Special Real Estate encumbered by such Special Security
Documents in such amount as is determined by the Agent. The Borrower
shall upon demand pay the cost of any such mortgagee's title insurance
policy, the cost of any updated UCC searches, all recording costs and
fees, and any and all intangible taxes or other documentary or mortgage
taxes, assessments or charges which are demanded in connection with the
recording of any of the Special Security Documents. In addition, the
Borrower shall pay within five (5) days after demand any and all costs,
fees, intangible tax, documentary or mortgage tax, assessments or
charges as are demanded by any governmental authority by reason of the
Special Security Documents prior to the recording of
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the same. In the event that the Borrower fails to pay such amounts as
provided in this section, then the Banks may advance such amounts as are
required to be paid as Loans hereunder, which Loans shall bear interest
at the rate for overdue payments set forth in the Credit Agreement. The
Agent and the Banks agree that, provided no Default or Event of Default
shall have theretofore occurred hereunder or under any of the other Loan
Documents, Agent shall, within five (5) days of the receipt of written
request from Borrower, release the Special Real Estate from the lien of
the Special Security Documents and return the Special Security Documents
to Borrower; provided, however, Agent shall not be obligated to release
the Special Real Estate or return the Special Security Documents if, as
a result of the release of the Special Real Estate, a Default or Event
of Default shall exist hereunder or under any of the other Loan
Documents."
(f) By deleting Section 9.5 of the Credit Agreement in its entirety,
and inserting in lieu thereof the following:
ASection 9.5 Mortgaged Property Operating Cash Flow. The Borrower will
not, at the end of any fiscal quarter, permit the sum of (a) the
quotient obtained by dividing the combined Operating Cash Flow with
respect to the Mortgaged Properties which are Regular Real Estate for
the period covered by the four previous consecutive fiscal quarters
(treated as a single accounting period) by 1.4, plus (b) the quotient
obtained by dividing the combined Operating Cash Flow with respect to
the Mortgaged Properties which are Special Real Estate for the period
covered by the four previous consecutive fiscal quarters (treated as a
single accounting period) by 1.65, to be less than the Pro Forma Debt
Service Charges for such period, provided that for purposes of
determining compliance with this covenant prior to such time as the
Borrower has owned and operated a Mortgaged Property for four full
fiscal quarters, the Operating Cash Flow with respect to such Mortgaged
Property for the number of full fiscal quarters which the Borrower has
owned and operated such Mortgaged Property as annualized shall be
utilized."
(g) By deleting the notice address for the Agent and BankBoston
appearing in Section 19 of the Credit Agreement in its entirety, and inserting
in lieu thereof the following:
"If to the Agent or BankBoston:
BankBoston, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division/Ramco-▇▇▇▇▇▇▇▇▇▇ Account Officer
With a copy to:
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BankBoston, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇"
(h) By deleting Appendix A attached to Exhibit C of the Credit
Agreement in its entirety, and inserting in lieu thereof Appendix A attached to
this Amendment; and
(i) By inserting Schedule 1.1 attached to this Amendment as
Schedule 1.1 to the Credit Agreement.
3. References to Credit Agreement. All references in the Loan
Documents to the Credit Agreement shall be deemed a reference to the Credit
Agreement as modified and amended herein.
4. Consent of Guarantor. By execution of this Amendment, Guarantor
hereby expressly consents to the modifications and amendments relating to the
Credit Agreement as set forth herein and the modifications and amendments to
each of the Security Deeds and Assignment of Leases and Rents contemporaneously
herewith, and Guarantor hereby acknowledges, represents and agrees that the
Guaranty remains in full force and effect and constitutes the valid and legally
binding obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, that the Guaranty extends to and applies to the foregoing
documents as modified and amended, and that the execution and delivery of this
Amendment does not constitute, and shall not be deemed to constitute, a
release, waiver or satisfaction of Guarantor's obligations under the Guaranty.
5. No Default. By execution hereof, the Borrower and Guarantor
certify that the Borrower and Guarantor are and will be in compliance with all
covenants under the Loan Documents after the execution and delivery of this
Amendment and the other amendments being delivered by the Borrower
contemporaneously herewith, and that no Default or Event of Default has
occurred and is continuing.
6. Waiver of Claims. Borrower and Guarantor acknowledge, represent
and agree that Borrower and Guarantor have no defenses, setoffs, claims,
counterclaims or causes of action of any kind or nature whatsoever with respect
to the Loan Documents, the administration or funding of the Loans or with
respect to any acts or omissions of Agent or any of the Banks, or any past or
present officers, agents or employees of Agent or any of the Banks, and each of
Borrower and Guarantor does hereby expressly waive, release and relinquish any
and all such defenses, setoffs, claims, counterclaims and causes of action, if
any.
7. Ratification. Except as hereinabove set forth, all terms,
covenants and provisions of the Credit Agreement remain unaltered and in full
force and effect, and the parties hereto do hereby expressly ratify and confirm
the Credit Agreement as modified and amended herein.
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Nothing in this Amendment shall be deemed or construed to constitute, and there
has not otherwise occurred, a novation, cancellation, satisfaction, release,
extinguishment or substitution of the indebtedness evidenced by the Notes or
the other obligations of Borrower and Guarantor under the Loan Documents.
8. Counterparts. This Amendment may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
9. Miscellaneous. This Amendment shall be construed and enforced in
accordance with the laws of the State of Michigan. This Amendment shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective permitted successors, successors-in-title and assigns as provided in
the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have hereto set their hands and
affixed their seals as of the day and year first above written.
BORROWER:
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P., a Delaware limited
partnership, by its sole general partner
By: Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, a
Massachusetts business trust
By: /s/ Authorized Signature
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Name:
Title:
[SEAL]
GUARANTOR:
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST, a
Massachusetts business trust
By: /s/ Authorized Signature
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Name:
Title:
[SEAL]
BANKBOSTON, N.A., individually and as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
[BANK SEAL]
NBD BANK
By:/s/ Authorized Signature
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Title:
[BANK SEAL]
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